Decayed Detention Standards and Unfulfilled Legal Change

By: Sarah Wachs

Edited By: christine mao and william tong

Throughout the news and social media, it’s not difficult to find pictures of overcrowded cells with people of all ages lying on filth-covered floors. Over the past several years, people have watched as immigrants and refugees are left in the hands of the U.S. Immigration and Customs Enforcement (ICE), whisked away only to be put in cages and treated with little respect for basic rights. As California representative Anna Eshoo observes, immigrants are subjected to days and weeks of overcrowding and a complete lack of proper hygiene.[1] Similarly, the Department of Homeland Security’s Inspector General report revealed serious understaffing, inadequate mental health services, and a lack of clean, running water.[2] 

ICE has standards in place for detention centers to follow for the maintenance of suitable living conditions for immigrants; however, these standards are not often followed. As of 2019, ICE requires detention centers to have access to “appropriate medical, dental, and mental health care, including emergency services.” Detainees are meant to be issued clean clothing, linens, and personal hygiene items, and emergency capacity limits are supposed to be followed.[3] Despite these wide-coverage standards, there is clear evidence based upon images and investigations done by the Department of Homeland Security and others that ICE fails to maintain these standards in detention centers across the country. However, it is not only the public that recognizes these underservices: the immigrants themselves know just as well, and in their struggle, some have managed to bring their grievances to court.

In April 2020, just as the COVID-19 pandemic began to take rise, Faour Abdallah Fraihat brought a case against ICE, claiming that their COVID-19 regulations for detention centers reflected “deliberate indifference” and “reckless disregard” of the medical needs and health risks within these centers.[4] In his case, he aimed for a preliminary injunction that would force ICE to enforce stronger COVID-19 policies, but he ultimately lost.[5] Fraihat is not the only detainee coming to the courts; he is merely one of many whose concerns get overlooked by the judicial system. Rajinder Lehal had his claims of deliberate indifference dismissed against the detention center’s physician because he failed to provide significant evidence of unnecessary infliction of pain.[6] A former detainee, under the legal pseudonym John Roe, had his sexual assault claims against a guard in the detention system dismissed for putting forth a large amount of “shotgun” claims, in which numerous claims are placed forth in hopes that at least one will stick in court.[7] These men are among numerous immigrants whose claims are dismissed by the courts with hardly any consideration of the individual circumstances.

Amongst these cases, judicial restraint reigns strong. While the courts wield the power of judicial review and have the ability to interpret the law in new ways to set precedents that would change the future application of laws, they often shy away from this power in immigration cases. Instead, they take comfort in judicial restraint, meaning that they do not allow for new interpretations and hold an inflexible lens upon the law.[8] With judicial review often comes activism and change; with restraint they fall short of helping those who need said change. For Fraihat, Lehal, and Roe, the judges they faced failed to explore new avenues of the law in order to provide substantive justice when they were in need of such. Between refusing to hear someone’s case due to shotgun claims and upholding strict requirements on claims of indifference and neglect, detained immigrants are treated harshly under the current judicial system.

Policymakers and politicians have noted these issues and have attempted to push for legislation that would grant more support to immigrants and uphold humane standards within detention centers. As noted earlier, Congresswoman Anna Eshoo visited a detention center in Texas in 2019 and reported the conditions as a “humanitarian crisis” and called for reform for proper standards to be upheld. Numerous other legislators have taken action, through giving public statements, issuing letters urging ICE and DHS to shut down detention centers or enact changes within them to better protect detainees, and even drafting legislation to codify higher standards of safety for immigrants.[9]

The Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, introduced in the House of Representatives in June 2019, is a strong example of the urge from legislators to enact change on the behalf of detainees. The act proposed standards that would have increased clean water and hygiene standards, food and nutrition, and adequate shelter standards.[10] Notably, the act did not make it through the Senate, having been passed on to the Committee of the Judiciary in July 2019 with no further action.[11] While it was not passed into law, the thought still stands: legislators do want, and very much have the power, to promote change in the law governing immigrant detention.

However, no real change has been enacted recently on behalf of these immigrants. With the COVID-19 pandemic, the end of Donald Trump’s presidency, and the start of Joe Biden’s, there has been a lot of uncertainty in the United States, including for immigrants and refugees. While they are no longer facing threats of a border wall or mass deportation and xenophobia from the president, detention center conditions have not improved. While Biden set a promise of ending “prolonged” detention and even terminated contracts with two ICE detention centers in 2021, the number of immigrants sent to and remaining in detention centers has not dropped in accordance with this promise.[12]

With the government making no leeway on changes to detention, it is left in the hands of the people to push for it. Coming out of the midterm elections with a probable even split in the Senate and a Republican majority in the House means that pro-immigrant legislation will have a hard time finding passage, but there is no reason that an effort cannot be made to try. If the judiciary will not use judicial review to find some form of reprieve for detainees, then there needs to be legislation created in order to protect their right to a safe and clean shelter. Detained immigrants are deserving of basic human rights, and it is now up to the people to hold the government accountable if it is unable to provide these rights on their own volition. 

Note: Some content and findings are taken from my winter term paper for SOCIOL_101-6: Birthright Citizenship, “Detention, Decisions, and Making a Difference: Judges and Legislators’ Understanding of Detainment Law and Substantive Justice.”

NOTES:

1. “Eshoo Travels to Texas Detention Centers: ‘The Conditions Are Inhumane.’” Congresswoman Anna Eshoo, July 17, 2019. https://eshoo.house.gov/media/press-releases/eshoo-travels-texas-detention-centers-conditions-are-inhumane. 

2. U.S. Congress, House, Subcommittee on Oversight, Management, and Accountability. House Homeland Security Subcommittee on Oversight, Management and Accountability Holds Hearing on ICE Detention Facilities Oversight, 116th Cong., 1st sess., 2019.

3. “Detention Management.” U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, https://www.ice.gov/detain/detention-management.

4. Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613, 2021

5. Fraihat v. U.S. Immigration & Customs Enf’t

6. Lehal v. Cent. Falls Det. Facility Corp., 2019 U.S. Dist. LEXIS 49477, 2019

7. Roe v. Johnson Cty., 2019 U.S. Dist. LEXIS 143705, 2019

8. “Judicial Restraint.” Ballotpedia. Accessed November 10, 2022. https://ballotpedia.org/Judicial_restraint. 

9. “Lofgren, Correa, CA Dems Urge DHS to Close Three ICE Detention Centers.” Congresswoman Zoe Lofgren, U.S. House of Representatives, 25 Oct. 2021, https://congressional-proquest-com.turing.library.northwestern.edu/congressional/docview/t63.d40.prcoshma21163g5?accountid=12861

10. U.S. Congress, House, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong., 1st sess., introduced in House June 12, 2019.

11. Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239. 

12. Philip Marcelo, “Immigrant Detentions Soar despite Biden's Campaign Promises.” AP NEWS. Associated Press, August 5, 2021. https://apnews.com/article/joe-biden-health-immigration-coronavirus-pandemic-4d7427ff67d586a77487b7efec58e74d. 
    

BIBLIOGRAPHY:

Congress.gov. "H.R.3239 - 116th Congress (2019-2020): Humanitarian Standards for Individuals in Customs and Border Protection Custody Act." July 25, 2019. https://www.congress.gov/bill/116th-congress/house-bill/3239.

“Detention Management.” U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, https://www.ice.gov/detain/detention-management.

“Eshoo Travels to Texas Detention Centers: ‘The Conditions Are Inhumane.’” Congresswoman Anna Eshoo, July 17, 2019. https://eshoo.house.gov/media/press-releases/eshoo-travels-texas-detention-centers-conditions-are-inhumane.

Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613 (2021)

“Judicial Restraint.” Ballotpedia. Accessed November 10, 2022. https://ballotpedia.org/Judicial_restraint.

Lehal v. Cent. Falls Det. Facility Corp., 2019 U.S. Dist. LEXIS 49477, 2019

Lofgren, Correa, “CA Dems Urge DHS to Close Three ICE Detention Centers.” Congresswoman Zoe Lofgren, U.S. House of Representatives, 25 Oct. 2021, https://congressional-proquest-com.turing.library.northwestern.edu/congressional/docview/t63.d40.prcoshma21163g5?accountid=12861

Marcelo, Philip. “Immigrant Detentions Soar despite Biden's Campaign Promises.” AP NEWS. Associated Press, August 5, 2021. https://apnews.com/article/joe-biden-health-immigration-coronavirus-pandemic-4d7427ff67d586a77487b7efec58e74d. 

Roe v. Johnson Cty., 2019 U.S. Dist. LEXIS 143705, 2019

U.S. Congress, House, Humanitarian Standards for Individuals in Customs and Border Protection Custody Act, H.R. 3239, 116th Cong., 1st sess., introduced in House June 12, 2019.

U.S. Congress, House, Subcommittee on Oversight, Management, and Accountability. House Homeland Security Subcommittee on Oversight, Management and Accountability Holds Hearing on ICE Detention Facilities Oversight, 116th Cong., 1st sess., 2019.